Within the next months, Massachusetts’ legislators are expected to consider an amendment mandating that “Strip searches of inmates, including the videotaping thereof, shall not be conducted by or in the immediate vicinity of a correction officer or other employee of the opposite sex, except under an emergency or otherwise urgent situation.” Massachusetts Bill H.3444, An Act relative to searches of female inmates, comes in the wake of a successful lawsuit filed in 2011 against Sheriff Michael J. Ashe and Assistant Superintendent Patricia Murphy of the Western Massachusetts Regional Correctional Center in Chicopee. This lawsuit was filed on behalf of Debra Baggett and 178 former and current women detainees at the Chicopee Jail. As Jean Troustine explains, the defendants brought evidence showing that over a period of less than two years 273 strip searches had been videotaped, all of women, mostly by men who supposedly did not look.

The proposed law is certainly a step in the right direction. However, allowing the presence of an officer or employee of the opposite sex under an (undefined) “emergency or otherwise urgent situation” leaves the door open for subjective assessments of “emergencies” (for example, the inmate appears upset – a reaction that I’d expect to be fairly common when faced with a strip search) or bureaucratically based “urgencies” (for example, no officers of the matching gender happen to be available.)

Strip searches ostensibly are carried out in order to prevent contraband from entering prisons, yet reports cast serious doubts on the effectiveness of strip searches in that matter. In fact, evidence indicates that the majority of contraband is brought into prisons by prison employees rather than by inmates. Even if a strip search uncovers a bag of heroin or cocaine hidden on the body, that bag is likely to be a drop in the bucket against the background of the larger market of drugs smuggled in by employees. In other words, even if strip searches could be justified in terms of uncovering contraband (which, in fact, strip searches rarely uncover), to the extent that I have been able to see hard data on the matter, the amount of the uncovered contraband cannot justify this practice. In fact, no one really knows how effective strip searches are at keeping contraband out of prisons which is why I urge the Commonwealth of Massachusetts (and the rest of the country, for that matter) to document every strip search: the specific reason for conducting it and what exactly – if anything – the search uncovered.

National studies have found that strip searches often are conducted to establish power more than for real expectations of finding contraband . According to Deborah L. Macgregor, in an article published in the Columbia Journal of Law and Social Problems, women are particularly targeted for these displays of power. It is not uncommon for prison guards to use children as pawns to coerce women to participate in a strip search. For example, women may be threatened with not being permitted to see their children if they fail to cooperate. “Prison and police officers are vested with the power and responsibility to do acts which, if done outside of work hours, would be crimes of sexual assault. If a person does not ‘consent’ to being stripped naked by these officers, force can lawfully be used to do it,” according to Amanda George in the Australian Institute of Criminology.  George cites women’s accounts of strip searches: “We are strip searched after every visit. We are naked, told to bend over, touch our toes, spread our cheeks. If we’ve got our period we have to take the tampon out in front of them. It’s degrading and humiliating. When we do urines it’s even worse, we piss in a bottle in front of them. If we can’t or won’t we lose visits for three weeks.”

Justice Marshall has described a strip search as “one of the most grievous offenses against personal dignity and common decency.” These searches create “feelings of ‘deep degradation and terror'” and instill psychological reactions that “can be likened to those of rape victims.” The punitive nature of strip-searching is particularly egregious in light of the fact that approximately one third of women incarcerated in Massachusetts have not been convicted of a crime. Rather, they are in jail or prison awaiting trial, typically because they are not able to pay relatively small sums of bail money.

The coercive nature of prison exacerbates the humiliation of strip searches. An estimated 70% of women drawn into the correctional system have experienced physical or sexual violence, and in many cases that includes childhood sexual abuse. Prison procedures requiring the removal of clothing and intimate touching of an inmate’s body are especially traumatizing for women who have suffered abuse in the past. Responses to perceived threats can include alienation, withdrawal, fighting back, extreme outbursts, worsening of psychiatric symptoms or physical health problems, self-injury or suicide attempts, and increased substance use. In the prison context, these behaviors can lead to further punishment, including solitary confinement, and can easily be construed as an “emergency” meriting the presence of opposite sex officers at the strip search.

According to testimony provided by Carmen Guhn-Knight (August 7, 2015) based on interviews with sixty women who were videotaped while undergoing strip searches at the Chicopee Jail in western Massachusetts, “Women with histories of sexual abuse told me of their heightened sensitivity to having their naked bodies video-recorded. They said they returned to their communities re-traumatized, and in some cases with PTSD due to being recorded during strip searches.” Guhn-Knight shares some of the reactions she heard from these women: “Do we have to have the videotape? I don’t want to be videotaped naked. I don’t want to be filmed naked… I don’t want the camera on me.” “Is this going to end up on YouTube? … I’m being filmed while everything’s off? I’m naked being filmed.” “I’m not going to get stripped in front of a camera, that’s pornography.” “[You] take someone’s dignity and then do it again with a camera.” According to Guhn-Knight, “Despite their complaints, these women had no choice in the matter; they eventually removed their clothing themselves or were restrained while an officer removed their clothing.”

While the proposed amendment addresses the gender of the person holding the camera, it does not address the broader problem of video-taping strip searches overall. The taping of strip-searches is ostensibly for the protection of the prisoner; that is, having a record may prevent or at least document abuse during the search. However, the preservation of the tapes opens the door for grievous violations of privacy. In a country in which viewing on-line pornography is widespread (and sometimes unavoidable when unrequested porn sites pop up on screens), women inmates have good reason to fear that the tapes of strip searches may be misused for pornographic entertainment. Doubling down on the harm of the practice of videotaping strip searches, research shows that men who watch pornography are more likely to voice attitudes supporting violence against women and to display dominance and aggression (including choking, gagging and insulting name-calling) toward women while engaging in sexual activity.

Based on my reading of the scholarly literature as well as on my own research with formerly incarcerated women, I believe that the proposed amendment does not go far enough to protect women or men from the pain, humiliation and human rights violations associated with strip searches. I suggest that the law be amended to (1) disallow routine strip searches (2) permit strip searches only in situations when there is clearly defined and documented reason to suspect that the inmate is hiding contraband on his or her body (3) clearly inform all prison staff that strip searches may not be used as a form of punishment or discipline, and institute sanctions against staff who order or participate in strip searches in other than situations where there is clearly defined and documented reason for the search (4) disallow all strip searches by opposite sex officers and employees (5) cease video-taping of strip searches (6) immediately discard all existing video-tapes of strip searches.